Filibustering Judicial Appointments Is Unprecedented?

by David Greenberg

Mr. Greenberg writes the "History Lesson" column in Slate and teaches at Rutgers University. He is the author of Nixon's Shadow: The History of an Image.

To justify banning the use of filibusters in judicial nomination debates, Republicans in the Senate are claiming support from history. Until now, say Republicans such as Sen. Jon Kyl and former Sen. Bob Dole, no one has ever used filibusters to block nominees to the federal courts. Because Democrats have broken an unwritten rule, their logic goes, Republicans are being forced to change written ones.

But the charge that filibustering judicial appointments is unprecedented is false. Indeed, it's surprising that so few Washington hands seem to recall one of the most consequential filibusters in modern times -- particularly because it constituted the first salvo in a war over judicial nominees that has lasted ever since.

Consider: From 1897 to 1968, the Senate rejected only one candidate for the Supreme Court (John J. Parker, in 1930). But since 1968, six candidates have been rejected or withdrawn, and four others have faced major hostility. During Bill Clinton's presidency, the willingness to challenge presidential prerogative spilled down to the level of appellate court nominees as well. Under Bush, federal court appointments have become an ongoing donnybrook.

This contentious new era began on June 13, 1968, when Supreme Court Chief Justice Earl Warren decided to retire, and President Lyndon B. Johnson tapped Associate Justice Abe Fortas, his old friend and advisor, to replace him. It’s often recalled that Fortas resigned from the court because of unethical financial arrangements. That’s true, but the disclosures that hastened Fortas’s resignation didn’t surface until 1969, months after his first ordeal. And, unfortunately, the ethical crisis that forced him from the bench has overshadowed and blurred memories of the details of his confirmation battle.

When Fortas was nominated for chief justice, he initially seemed an uncontroversial choice. Possessed of a distinguished career, he was amply qualified for the post. But Johnson, having forsworn reelection, was a lame duck, and the likely Republican presidential nominee, Richard Nixon, had made the Warren Court’s jurisprudence a campaign issue, pledging to name judges who would “interpret the Constitution,” and not “legislate from the bench.” Republicans thus saw no reason to confirm Fortas before the November election.

It wasn't just Republicans who balked. After signing the 1964 Civil Rights Act, LBJ had predicted, “There goes the South for a generation,” and he now saw his prophecy realized. Conservative Southern Democrats had long abhorred the Warren Court's rulings on racial equality, sexual freedom, and the rights of the accused. When Sen. Richard Russell (D-Ga.) decided in early July to oppose Fortas, he brought with him most of his fellow Dixiecrats (including Sam Ervin of North Carolina, later a hero to liberals for his leadership of the Watergate committee). Some waited until Nixon was formally nominated by the Republicans (as opposed to the liberal Nelson Rockefeller) before announcing their opposition.

Fortas's foes had various justifications for opposing him. Republican Robert Griffin of Michigan attacked the justice as the president's "crony," pointing to the regular counsel he continued to give Johnson after joining the Court. (For justices to advise presidents was, by 1968, a longstanding but waning tradition.) Others had a field day with the news that Fortas had earned $15,000 for leading summer seminars at American University — a real but relatively petty offense that critics inflated into a disqualifying crime. (The arrangements that later drove Fortas from the court were more severe.) Anti-Semitism may also have been at work:
According to Laura Kalman's biography of Fortas, Sen. James Eastland privately feared he "could not go back to Mississippi" if he voted to confirm a Jewish chief justice.

At bottom, however, Fortas's critics opposed him on ideological grounds.
Sen. Strom Thurmond blasted Fortas's votes in a series of pornography cases, which the South Carolina Republican said had opened the floodgates to a torrent of hard-core smut. Thurmond arranged for reporters and Senate colleagues to screen explicit films that Fortas purportedly had legalized.

Thurmond also denounced Fortas for defending the rights of rapists, criticizing in particular the Supreme Court's decision in Mallory vs.
United States, which let an admitted rapist go free because police had detained him excessively before his arraignment – but which had come down in 1957, before Fortas joined the Court. Fortas, in short, became the lightning rod for years of pent-up rage toward the Warren Court.

The Senate Judiciary Committee ultimately endorsed Fortas. But a band of Republicans and Southern Democrats took their fight to the Senate floor.
On Sept. 25, 1968, they began a filibuster, beating back a motion to end debate, with Republican leader Everett Dirksen, once a Fortas supporter, switching sides to oppose cloture. Bested in the Senate, Johnson withdrew the nomination on Oct. 2.

The first defeat for a high court nominee in 38 years, the Fortas debacle began the Senate's now-commonplace defiance of a president's judicial appointments. And unlike in the 19th century, when senators often admitted to political motives when they opposed a nominee – for his stand on immigration or slavery, for example – since 1968 senators have typically fastened on some cover story, such as Fortas's outside income, or William Rehnquist's alleged voter intimidation in the 1960s, or Clarence Thomas's
reported sexual harassment. These days, senators and presidents both routinely pretend that ideology doesn’t enter their calculations.

History belies such fictions. Fortas met defeat because of his liberal jurisprudence. And Democrats today oppose a handful of President Bush's nominees because they're extremely conservative. For this same plainly political reason, Republicans, who so masterfully deployed the filibuster in 1968, now want to abolish it.

History has nothing – and everything –- to do with it.

***

POSTSCRIPT After a previous, shortened version of this piece ran in the Los Angeles Times, some supporters of the current Republican position – favoring the abolition of the filibuster in judicial nominations – emailed me with the same talking points. They say that their argument isn’t that that no one has ever used filibusters to block nominees but -- and please note the very subtle distinction – that no one has ever used filibusters to block nominees who already have clear majority support.

This distinction is specious.

First of all, support for Fortas was shifting throughout the process, and he almost certainly did have majority support at some stage. Indeed, the fact that he was appointed to the Supreme Court just three years earlier, albeit under a slightly different Senate, suggests as much. Moreover, there’s no way to tell if he ultimately would have been confirmed, since he never got an up-or-down vote. Republicans say that the cloture motion I discuss in this piece – which drew less than 51 votes to end the filibuster – proves he did not have the 51 votes for confirmation. But only 88 senators were present for that vote, and some of them said they supported Fortas’s confirmation but also supported continuing the floor debate about him.

All of this, of course, obscures a larger and more important point, which
is: Who cares whether the Republicans’ claim is refined to include the line about “clear majority support”? This is the sort of verbal parsing for which Bill Clinton would have been crucified. The big picture remains the same: Republicans are obviously making an argument from history, claiming that the Democrats are doing something unprecedented. But in order to make their “unprecedented” claim hold up under scrutiny, they have to append this proviso, so as to semantically define away existing precedents. They could also assert that no one has ever before filibustered a judicial nominee who wasn’t from Texas, or who wasn’t Jewish. But so what? If presented with the facts of the Fortas filibuster, will any voters not already inclined to back Bush’s nominees be persuaded that the Republicans have a compelling historical claim to make? Doubtful.

(In fact, making this semantic alteration to include the “clear majority support” line suggests that the Republicans -- or at least these particular polemicists –- are not ignorant or forgetful of the Fortas case, as I’d charitably assumed, but are being purposefully misleading.
For it suggests they’re actually well aware of the Fortas case and yet deliberately omit it from their discussion of history –- while laboring to redefine the meaning of “precedent” so that somehow the Fortas case won’t
“count.”)

Finally, and most important: while I deplore the Republicans’ dishonesty, and while I hope that the Democrats stop their most extreme appointments, I wrote this piece as a historian, not as a partisan. In fact, I’m personally of two minds about whether the filibuster should be abolished altogether. More often than not in the past, it has been used by racists and demagogues to halt progress, and it seems plain to me that if the situation were reversed, Democrats would be critical, and Republicans supportive, of its use in situations like the current one. Notably, during the Fortas nomination three moderate-to-liberal law professors wrote a letter to the New York Times arguing against the use of the filibuster in judicial appointments on constitutional grounds. It may actually be in the long run interests of democracy to do away with the filibuster. But my article was trying to inject some historical facts into a debate that was abusing history.

More Comments:

William J Dyer -
5/10/2005

Fortas wasn't from Texas, by the way. He grew up in Memphis as the son of Orthodox Jews who'd emigrated from England. This is a trivial misspeaking (or wrong assumption) on Prof. Greenberg's part, however.

Having quoted Sen. Eastland in support of his argument that "Republicans ... masterfully deployed the filibuster [against Fortas] in 1968," however, it might have behooved Prof. Greenberg to share even more background about Sen. Eastland. Prof. Greenberg leaves the misimpression in this article (and in the shorter LAT op-ed) that Sen. Eastland was a Republican. Of course, he wasn't.

It's not at all unlikely that anti-Semitism played some part in his participation in the attempt to delay a vote on Fortas' nomination to the Chief Justice's position. Robert A. Caro's third volume in his LBJ biography series, "The Years of Lyndon Johnson: Master of the Senate," quotes (at pages 102-03) from a NYT report in 1967, in which Sen. Eastland is described as "star[ing] coldly down a [Senate] committee table at Senator Jacob Javits of New York, a Jew, and say[ing], 'I don't like you--or your kind.'"

And as is made clear throughout Caro's book, Sen. Eastland was a certainly a great champion and advocate of the filibuster for its most traditional and ignoble use -- blocking passage of any federal civil rights legislation for 82 years. Caro also quotes Sen. Eastland (at page 767) as shouting the following to the ten thousand attendees at a White Citizens Council rally in Montgomery, Alabama, shortly after the successful civil rights boycott of the city bus system there:

"In every stage of the bus boycott we have been oppressed and degraded because of black, slimy, juicy, unbearably stinking niggers ... African flesh-eaters. When in the course of human events it becomes necessary to abolish the Negro race, proper methods should be used. Among these are guns, bows and arrows, slingshots and knives.... All whites are created equal with certain rights, among these are life, liberty and the pursuit of dead niggers."

Whether the efforts to stall the vote on the Fortas nomination constituted a full-blown filibuster or not is debateable. But as Prof. Greenberg's articles briefly acknowledge (and then proceed to ignore), the Senators opposing Fortas were "a small band" and included both Republicans and Democrats. They almost certainly did not all share the nasty motivations we can probably fairly impute to Sen. Eastland.

The Fortas nomination unique in a number of respects that make it hard to compare to the current situation. One important difference is that LBJ was the lamest of lame ducks by the time he nominated Fortas -- post-Tet Offensive, post-announcement that he wouldn't run for renomination. No longer "Master of the Senate," LBJ was almost a national joke (and certainly a national tragedy) by the time Fortas' nomination was withdrawn.

Fortas was a New Deal whiz kid and a distinguished lawyer -- pro bono counsel in Gideon v. Wainwright, for example -- and a founding and name partner in what's now Washington powerhouse law firm Arnold & Porter. But he had also been mainly noted a politico-legal mover and shaker before he ascended the Court as an Associate Justice. Among his political/legal clients had been LBJ, during the latter's outright theft of the Texas senate election in 1948. And much of what prompted opposition to his ascension to the CJ spot was his questionable conduct while he was an associate justice -- which obviously couldn't have been grounds to oppose his confirmation to that lower position. And indeed he was so ethically tarnished that by the time he resigned from the Court altogether, the law firm he'd helped found would not take him back.

Most importantly to distinguish the Fortas nomination from the current blockade of Bush-43 judicial nominees, however, Fortas was not being blocked as a matter of declared party policy by either the Republicans or the Democrats. Any single senator can filibuster. Caro's book (at 998) tells of Strom Thurmond's record-breaking twenty-four hour, eighteen-minute filibuster in his attempt to block final passage of the 1957 civil rights bill -- the lone Democratic holdout against LBJ's brilliant, masterful, devious, and successful attempt to break the 82-year civil rights blockade. But Thurmond failed because Johnson had already undercut his support not only among other Southern bigots but among senators philosophically opposed to cloture regardless of the underlying issue. Prof. Greenberg is right that we don't know, and can't know, whether the Fortas nomination ultimately would have gotten a majority of votes, nor even whether the Fortas filibuster might likewise ultimately have failed -- not because of a successful cloture vote, but because of exhaustion of the "small band." But however large the band of participants and sympathizers was in the Fortas "filibuster," it wasn't being done BY AND IN THE NAME OF THE DEMOCRATIC PARTY.

John H. Lederer -
5/8/2005

One who is trying to "inject some historical facts" ought be broad in his injection:

1. Is it possible for a majority of the Senate to filbuster?

Fortas was losing support fast as more and more damaging material came out. By the time of the cloture vote he did not enjoy the support of a majority in the Senate. A failed cloture vote is not, to most minds, a filibuster.

2. Cloture did not fail on reaching a vote on the nomination, but rather on taking up the nomination out of order on the excutive calendar. In part this reflected a race to have Fortas approved before more damaging information came out, or whether to delay the debate to a future time when opponents hoped there would be more information (there eventually was).

It is a bit different than killing a nomination by preventing a vote ever.

Incidentally such a delaying tactic is no longer possible. It is no longer dabatable whether to take up a second item on the executive calendar. Sen. Byrd excercised the nuclear option in 1980 to make that the case.

In any event a more complete and even sided rendition of the details would be more appropiate.

John H. Lederer -
5/8/2005

One who is trying to "inject some historical facts" ought be broad in his injection:

1. Is it possible for a majority of the Senate to filbuster?

Fortas was losing support fast as more and more damaging material came out. By the time of the cloture vote he did not enjoy the support of a majority in the Senate. A failed cloture vote is not, to most minds, a filibuster.

2. Cloture did not fail on reaching a vote on the nomination, but rather on taking up the nomination out of order on the excutive calendar. In part this reflected a race to have Fortas approved before more damaging information came out, or whether to delay the debate to a future time when opponents hoped there would be more information (there eventually was).

It is a bit different than killing a nomination by preventing a vote ever.

Incidentally such a delaying tactic is no longer possible. It is no longer dabatable whether to take up a second item on the executive calendar. Sen. Byrd excercised the nuclear option in 1980 to make that the case.

In any event a more complete and even sided rendition of the details would be more appropiate.

John Henry Haas -
5/7/2005

Thank you, David. This is the kind of work I like to find on HNN, and the kind we as a nation desperately need more of. Was it Orwell who said "he who controls the past, controls the present"? Historians can't usually have much effect on where the present get's dragged, but they can at least show how the control of the past is being done by force, with a lot of bullying, bludgeoning, and the occasional homicide.